The mission of Prognosis is to explore the nexus at which healthcare policy meets healthcare practice and how one affects the other. This blog makes readers more aware of the innovations taking place in healthcare delivery, financing and technology and the types of public policies that will encourage further progress.

Healthcare In Focus is a public education initiative of the HLC, created to promote a constructive dialogue about the state and future of American healthcare.

The Healthcare Leadership Council has never endorsed candidates for public office and we’re not going to start doing that now. I have to say, though, that there is a tangible benefit to Texas Governor Rick Perry (R) announcing his candidacy for President. It presents an opportunity to have a real debate about the merits of medical liability reform.

In his campaign, Perry will undoubtedly talk about the gains Texas has realized since its state legislature passed a measure capping non-economic damages in medical liability suits. Conversely, pundits and bloggers have already started taking shots at Lone Star-style tort reform ever since Perry announced his run for the White House.

A good example was found this week in The Incidental Economist blog. Relying heavily on the work of the interest group Public Citizen, a virulently anti-tort reform organization, the blog makes the case that Texas liability reform has not succeeded in reducing healthcare costs or the number of uninsured citizens.

Those opposed to tort reform tend to make these apples-and-oranges arguments. It’s akin to saying, if reforms make my car insurance premiums go down, shouldn’t I also have safer roads and better gas mileage. The fact is that malpractice insurance premiums and the costs associated with defensive medicine are just two components in the overall healthcare cost equation. (A logical question would be, what would healthcare costs be in Texas had tort reform not been enacted.)

And, as for the uninsured population, Sarah Kliff, formerly of Politico and now with the Washington Post, does a nice analysis here regarding the reasons Texas has a relatively high number of uninsured citizens.

Another piece worth reading is an op-ed in the New York Post this week, written by a Texas tort reform advocate, about the number of New York doctors heading south because of New York’s high malpractice premiums. The op-ed tells the story of an obstetrician whose medical liability premiums were heading toward $200,000 per year, making it impossible to continue to do business.

Now, Texas patients benefit from the services of that doctor and over 1,200 other physicians that have made the New York-to-Texas exodus since the latter state passed liability reform.

With the study released this week in the New England Journal of Medicine showing that three-fourths of the nation’s physicians will likely be sued at some point in their career – with a 99 percent probability in the high-risk specialties – let’s hope that Governor Perry’s candidacy does indeed ignite a national debate over the need for medical liability reform.

Now, it would be wrong to use this case in describing the debate over tort reform as being between those interested in a fair judicial process versus lawyers looking for a quick and unethical payday. That would be tremendously unfair to the many attorneys who represent their clients conscientiously and abide by the highest ethical standards.

Yet, in debates over and coverage of healthcare issues, we frequently see one side or another depicted in ways that don’t fairly describe their behavior or point of view.

Patient privacy is a prime example. I can’t begin to count the number of news stories that have portrayed debates over the confidentiality of medical records as being between “privacy advocates” and the healthcare industry, as if health providers weren’t committed to protecting the rights and interests of patients. On this issue, both sides of the discussion are “privacy advocates,” with the disagreements being over how to achieve both confidentiality and the essential flow of information to medical professionals.

What brings this matter to mind is an Associated Press article published yesterday about President Obama and congressional Republicans being at odds on the issue of medical liability reform. The article characterizes the pro-liability reform position as being all about placing limitations on the damages an injured person can receive. It isn’t until near the end of the article that it’s mentioned that the law in West Virginia – the state focused upon in the story – places a cap on noneconomic damages.

That’s what is not made clear in this article, and so often when this issue is discussed. Those of us who support medical liability reform don’t want to impose a strict cap on damages in general. In states where medical liability reform has been enacted – not only West Virginia, but Texas, California and others – there is no ceiling on the economic damages a plaintiff can receive. Reformers are trying to bring some sense to the question of punitive damages, reining in those multimillion dollar verdicts that juries can award on a whim, and that have an effect on healthcare costs and patient access to care. That distinction all too often doesn’t make it into news coverage.

There’s another interesting bit of oversimplification in that AP article. It mentions that trial attorneys and consumer groups oppose liability reform because it would “lessen the incentive…for healthcare providers to act responsibility.” Of course, this obscures the fact that the vast majority of physicians and hospitals do act responsibly and with the highest degree of professionalism, and that there is a sizeable gap between the number of malpractice suits filed and actual incidents of negligent care.

I could retaliate by talking about Maryland attorneys and Virginia chiropractors, but that would be wrong.

Some may be surprised that a state with strong Democratic leanings would be proposing a serious tort reform measure, but New York has strong motivation to do so. The state’s Medicaid program is in a state of crisis, with projections showing that it will account for over half of New York’s budget by 2020. The governor’s medical liability recommendations would bring $700 million in Medicaid savings.

Plus, malpractice insurance rates in New York are unacceptably high. New York hospitals are paying more than $1.5 billion in combined litigation-related expenses and soaring premiums threaten to make specialists like obstetricians and neurologists hard to find for New York patients.

This will be a gloves-off political brawl. The American Medical Association has backed the governor’s measure. The state’s trial bar association vigorously opposes it. Republicans control the state Senate and have backed the liability reform proposal. The Democratically-controlled state assembly has already dismissed the non-economic damages cap.

Let’s hope Governor Cuomo stands firm for his proposal. New York and the nation need this important and essential progress.

Some more interesting information has come to light on the issue of medical liability reform.

At the annual meeting this week of the American Academy of Orthopedic Surgeons, a new study was released that helps us better understand the extent to which medical professionals order unnecessary tests and procedures as protection against possible litigation.

There have, of course, been studies in the past based upon physician surveys. In this case, though, over 70 orthopedic surgeons in Pennsylvania were asked to track, over an extended period of time, whether an action was taken because it was for essential clinical care or if was a case of practicing defensive medicine.

As the Associated Press reported, the study showed that one in every five tests is ordered for defensive reasons and 35 percent of all costs can be attributed to defensive medicine.

Given mounting data like this, it’s no wonder that the House Judiciary Committee is moving rapidly to mark up liability reform legislation and the President’s proposed budget calls for “a more aggressive effort to reform our medical malpractice system.”

As the House Judiciary Committee works toward the passage of medical liability reform legislation, the nation’s trial lawyers – who, of course, have the most to lose if tort reform becomes law – are stressing the counterintuitive argument that states which have enacted liability reform actually have higher healthcare costs.

The trial attorneys’ association, the American Association for Justice, has issued a primer on the issue in which it uses Texas as its prime example of health costs increasing even when strict limits on non-economic damages in medical liability cases have been put into effect. The AAJ wrote:

“If doctors feel they need to practice “defensively” and order extra tests to avoid the liability, and if all this defensive medicine results in excess health care costs, then states that have already limited liability for doctors through tort reform should experience significantly lower health care costs than states that do not limit liability. Texas has some of the strictest caps in the country, which should eliminate any need to practice “defensively,” thereby lowering health care costs in the state. Yet Texas has some of the highest health care costs in the country. Health care costs in McAllen, Texas, have been growing at a faster rate than any other area in the country, and the cost of health care per patient is currently second highest in the nation.”

I suspect the good men and women of the trial bar are aware that they are freely mingling apples and oranges here. Texas’ healthcare costs are driven by the fact that the state has one of the nation’s highest uninsured populations, meaning that a comparatively higher percentage of patients are receiving their healthcare through emergency rooms.

And as for the McAllen, Texas reference, the American Association for Justice should read the Atul Gawande article in the New Yorker that documented the McAllen situation, which involves Medicare billing practices and has no linkage to the state’s liability laws.

The medical liability reform is an important one and deserves a serious discussion. Turning logic on its head to make a point doesn’t contribute to the dialogue.